Guardianship of Incapacitated Adults: A Summary of North Carolina ...

Fundamentals of Social Services Law
November, 2004
John L. Saxon
Institute of Government, UNC-CH
8. A guardian owes a fiduciary (trust) duty to his or her ward. A guardian must
act solely for the benefit of his or her ward, not for the guardian’s personal
benefit or for the benefit of other persons (other than the ward’s dependent
spouse or children).
9. In making decisions for or acting on behalf of the ward, the guardian must act
in the ward’s “best interest.”
a) A guardian must make the decision that he or she feels would be “best” for
the ward. In most cases, this will involve determining what a reasonable
person would think is the “best” decision given the particular
circumstances.
b) But in attempting to determine what is in the ward’s “best interest,” a
guardian may (should) consider the ward’s expressed wishes or desires if
the ward retains sufficient capacity to make an informed decision with
respect to a specific matter or act in the same manner that the ward would
act if he or she was still competent (that is, act in accordance with the
ward’s actions, preferences, and beliefs as they were expressed by the
ward before he or she become incapacitated). (This standard for decisionmaking
on behalf of a ward is sometimes referred to as “substituted
judgment.”)
10. A guardian is not, based solely on his or her role as guardian, legally liable to
third parties for injuries caused by the ward’s actions or negligence.
a) A guardian, however, may be liable to a third party if the guardian’s
negligence or breach of duty with respect to his or her care or custody of
the ward results in the ward’s injuring another person or property.
b) A guardian may be liable to the ward or the ward’s estate for damages
that the ward suffers as a result of the guardian’s unreasonable failure to
fulfill his or her responsibilities as a guardian. A guardian of the person,
however, is not liable for damages to the ward or the ward’s estate merely
because the guardian, acting reasonably and in good faith, authorized
medical treatment for the ward or because the ward was injured by the
actions or negligence of a third party who provided medical treatment,
professional care, or other services to the ward with the guardian’s
consent or approval.
11. A guardian of the person is entitled to reimbursement for his or her
expenditures for the ward’s care, but is not entitled to compensation or a
commission with respect to his or her service as the ward’s guardian. A
nonresident personal guardian is required to post a bond with the CSC; a
personal guardian who is a resident of North Carolina is not required to post a
bond.
12. Corporations and public officials who serve as personal guardians of
incapacitated adults are required to file periodic status reports with the CSC
or a designated state or local human services agency. Other personal
guardians may be required to file status reports with respect to their wards.
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